5.  The applicant was born in 1988 and lived in Pärnu-Jaagupi until his arrest. He is currently serving a prison sentence.
6.  On 21 May 2006 a sixteen-year-old, J., was killed in a forest close to a main road near the small town of Pärnu-Jaagupi. His body was found on 25 May 2006 and a criminal investigation was initiated on the same day.
7.  On 29 May 2006 the applicant, along with J.’s other school mates, was interviewed as a witness.
8.  On 1 July 2006 the applicant reached the age of eighteen.
9.  On the same date Mr Järve, a lawyer, informed the authorities that he had signed agreements to defend A. and K., who were suspects in the criminal case.
10.  On 19 July 2006 the applicant was arrested on suspicion of murder. He requested legal aid. On the same date he was interrogated in the presence of R., counsel appointed under the legal-aid scheme. The applicant denied the charges. On the following day R. met with the applicant in the detention facility.
11. On 21 July 2006 the applicant requested in writing that R. be appointed as his defence counsel. On the same date in the presence of R., the Pärnu County Court authorised the applicant’s detention.
12. On 24 and 25 July 2006 R. again met with the applicant in the detention facility.
13.  On 25 July Mr Järve and the applicant’s parents signed a legal services agreement, under which Mr Järve was to act as the applicant’s counsel. On the same day Mr Järve informed the police investigator of that fact and met with the applicant, who agreed to his acting as counsel. The applicant denied committing the murder he was suspected of. Between 25 July and 4 August 2006, Mr Järve met the applicant on six occasions. On Friday, 4 August 2006, the applicant expressed the hope that Mr Järve would visit him on the following Monday. He complained that he did not feel well, had pains in his heart and was extremely nervous. He and Mr Järve agreed that Mr Järve would request that the applicant be examined by a doctor. Mr Järve made such a request.
14.  On Monday, 7 August 2006, Mr Järve was told that the applicant had been taken to a doctor.
15.   The case file contains copies of two different hand-written requests by the applicant, both dated 7 August 2006, whereby he stated his wish to waive the services of Mr Järve. One of them reads:
“I wish to terminate the services of Paul Järve as my counsel appointed by my parents and wish to be defended by lawyer [R.].
Since I am an adult, this is my own decision.”
The other one reads as follows:
“I wish to terminate the services of Paul Järve as my lawyer appointed by my parents and wish to be defended by lawyer [R.].
Since I am an adult, this is my own decision.
At the same time I do not want my former counsel and parents to be informed of the act I have committed since I very much regret [it] and I simply feel very much ashamed.
I want to inform my mother myself.”
16.  On the same date, 7 August 2006, the police investigator ordered that the applicant be granted legal aid and appointed R. as his counsel.
17.  Later the same day (from 8.05 p.m. to 9.35 p.m.), the applicant was interrogated in the presence of R. He pleaded guilty and gave detailed statements about the circumstances of the offence. Subsequently, on 7 August 2006 (from 9.52 p.m. to 11.30 p.m.) and 8 August 2006 (from 12.42 p.m. to 1.30 p.m.) the applicant was taken to the crime scene in order to carry out an on-site reconstruction of the events and draw up a report including the applicant’s on-site testimony. The investigative activity was video recorded and R. was present as counsel.
18.  The case file contains copies of two handwritten “sincere confessions” by the applicant. They are dated 7 and 8 August 2006 and contain two different descriptions of the events. In the first, the applicant denies the charges, whereas in the second he admits to the killing of J.
19.  On 8 August 2006 the applicant filled out a request for legal aid, noting that he wanted R. as his counsel.
20.  On 8 August 2006, when Mr Järve inquired about the applicant’s health, he was allegedly told that the applicant had been taken to another location and that he was no longer in the police detention facility. He was also told that the applicant had terminated his services as his defence counsel.
21.  By the end of the day, Mr Järve was able to reach the police investigator overseeing the case by telephone. He was told that the applicant had terminated his services as counsel and that that role was being assumed by R. Mr Järve advised that he wanted to meet with the applicant in person so that he could record the termination of the legal services agreement and ascertain that the applicant had waived his services of his own free will. The investigator refused to authorise such a meeting. According to Mr Järve, she initially said that the applicant had instructed the termination of his services in writing, but refused to show him the instruction; subsequently she said that she could “go and have this letter written right away”.
22.  Mr Järve learned from unofficial sources that the applicant had been taken to the crime scene in order to carry out an on-site reconstruction of the events.
23.  On 8 August 2006 Mr Järve lodged a complaint with the Lääne District Prosecutor’s Office that the applicant’s defence rights had been breached. He considered that the termination of his services by the applicant had not been voluntary. Mr Järve noted, inter alia, that at his last meetings with the applicant, the applicant had been frightened and had complained that investigator S. had threatened to take him, handcuffed, to Pärnu-Jaagupi and make him confess to the murder.
24.  On 9 August 2006 the applicant talked to his mother.
25.  On 10 August 2006 the applicant, in the presence of a prosecutor and defence counsel R., confessed to the murder of J. The questioning of the applicant and his confession were video recorded.
26.  On 11 August 2006 R. learned that a new client agreement for the defence of the applicant had been signed with lawyer G.
27.  On 15 August 2006 Mr Järve’s complaint was dismissed by a prosecutor who had been at the crime scene reconstruction, along with the applicant and police officers. According to the prosecutor’s decision, on 21 July 2006 the applicant had requested in writing that R. be appointed as his defence counsel and had asserted that he wished no other counsel. Furthermore, the applicant had written two requests to the police on 7 August 2006, in which he had terminated the services of Mr Järve and requested that he be assisted by R. On the same date, a police inspector had drawn up a decision to grant the applicant legal aid in which R. was named as the applicant’s counsel. From 7 August 2006 R. had participated as the applicant’s counsel in all procedural measures. On 9 August 2006 the prosecutor had talked to the applicant, who had confirmed that he trusted R. and stated that he wanted him to act as counsel. The applicant had not had any complaints against the police. The prosecutor noted that Mr Järve no longer had any authority as the applicant’s counsel and that G. was currently acting as his counsel.
28.  On 16 August 2006 Mr Järve made a criminal complaint to the police. He requested that it be verified whether investigators M. and S. had committed criminal offences under Articles 289 (misuse of official position) and 291 (abuse of authority) of the Penal Code (Karistusseadustik). On 28 August 2006 the internal control department of the Police Board informed Mr Järve that no criminal proceedings had been initiated. In respect of the alleged misuse by M. of his official position, it was found that the applicant had terminated Mr Järve’s services as counsel and had wanted to be defended by R.; thus, his defence rights had not been violated by M. As to the question whether S. had committed an abuse of authority, it was noted that that offence presupposed the unlawful use of a weapon, special equipment or violence. Violence in this context meant a threat to kill, cause health damage, or cause significant damage to or destroy property; causing damage to the health of another person, or beating, battery or other physical abuse; or continuous physical abuse or abuse which caused great pain. It was found that the alleged threat by S. to handcuff the applicant, take him to Pärnu-Jaagupi and make him confess to the murder did not fall under Article 291 of the Penal Code. An appeal to a district prosecutor’s office could have been lodged against the refusal to initiate criminal proceedings.
29.  In the meantime, on 18 August 2006 Mr Järve sent a memorandum concerning the circumstances to the Board of the Bar Association. On 22 August 2006 the Board of the Bar Association decided to send Mr Järve’s letter for reply to the State Prosecutor’s Office and request an explanation from R. about the circumstances in which he took over the functions of counsel. In a reply of 22 September 2006, R. explained that in the evening of 7 August 2006 he had been called by an investigator and asked to be present during the applicant’s interrogation, as the applicant had requested in writing. R. had gone to the police facility and examined the request, in which it had also been asked that no one be informed. The applicant had confirmed orally that he wished to terminate Mr Järve’s services as counsel, since he had also been defending other suspects in the case. It stated that he wished instead to be defended by R. and that no one, including Mr Järve, be informed of the procedural measures. R. had not informed Mr Järve about the termination of his function of the applicant’s counsel because, firstly, that had been the applicant’s wish, and secondly, the investigator had undertaken to inform Mr Järve the next morning. On 11 August 2006 R. became aware that, based on a legal services agreement, G. had assumed the responsibilities of the applicant’s counsel. On 3 October 2006 the Board of the Bar Association concluded that R. had not breached the rules of professional ethics.
30.  In the meantime, on 22 August 2006 Mr Järve appealed against the district prosecutor’s decision to the State Prosecutor’s Office, which, by a decision of 22 September 2006, dismissed the appeal. According to the decision, the applicant had initially accepted Mr Järve as counsel, chosen by his parents, and had gone along with the tactics proposed by Mr Järve of denying the charges. However, during the evening of 7 August 2006 he had decided to tell the truth. It had been explained to him that his statements had contradicted those given by A. and K., who were also suspects at that stage of the proceedings. There might have been the need to arrange a confrontation with A. and K., whose counsel of choice was Mr Järve. Thus, the question of whether Mr Järve could properly act as the applicant’s counsel had arisen. The applicant had understood the problem and had decided to continue with R. acting as his counsel. He had submitted a written request terminating Mr Järve’s services as counsel and advising that he wanted R. to act on his behalf. He had also requested that Mr Järve and his parents not be informed about the crime he had committed before he had had an opportunity to talk to his mother in person. The state prosecutor considered that Mr Järve should have been informed about the termination sooner, and should have been given the documents indicating the applicant’s wishes. The state prosecutor noted that the applicant had asked to have G. as his counsel and R. as his substitute, and that he had dispensed with Mr Järve’s services. On 29 September 2006 a similar response was given by the State Prosecutor’s Office to the Board of the Bar Association.
31.  In the meantime, on 28 August 2006, the applicant was interrogated in the presence of counsel G. The applicant presented a different version of the events and denied having committed the murder.
32.  On 30 August 2006, the applicant, who was being detained in a police detention facility, wrote a letter to his father in which he confessed to killing J. The letter was seized by the authorities.
33.  On 5 September 2006 the police investigator ordered a psychiatric and psychological examination of the applicant. She noted that the applicant had presented two different versions of the events during interrogations. It was also noted that the applicant had been characterised by witnesses as a cruel person who tortured animals but also as a caring one who protected girls. On 24 October 2006 three experts, having examined the applicant and documentary evidence, gave their opinion: the applicant was suffering from adjustment disorder with depression. He had not been hindered from understanding or controlling his behaviour at the time of the commission of the crime and was capable of participating in criminal proceedings and serving a sentence.
34.  In the meantime, on 7 October 2006 Mr Järve lodged a complaint with the Pärnu County Court against the decision of the State Prosecutor’s Office. On 18 October 2006 the County Court upheld the complaint. It relied on the private law provisions on the waiver of a right by a third party for whose benefit a contract had been entered into, and found that the legal services agreement continued to be valid until such time as the applicant’s parents and Mr Järve were informed in an appropriate manner of the applicant’s waiver. In the operative part of its decision, the court ordered the investigative authorities and the prosecutor’s office not to hinder Mr Järve’s acting as the applicant’s counsel until such time as the applicant’s waiver was served on the parties to the legal services agreement in an appropriate manner.
35.  On 23 October 2006 the two waiver requests signed by the applicant were served on Mr Järve, together with the County Court’s decision.
36.  Mr Järve appealed against the County Court’s decision on 20 November 2006, noting that he had not been able to meet the applicant and that he found unconvincing the service on 23 October 2006 of waiver letters dated 7 August 2006. He called into question the existence on 7 August of the two letters of waiver, as the investigator had told him on 8 August 2006 that she could let the applicant write such a letter if he insisted. He pointed out that according to G., the applicant had told him that he had had nothing against Mr Järve and that he had agreed to R. acting as counsel only because he had been told that Mr Järve had not been available, which had not been true. Mr Järve was also of the opinion that the wording used in the waiver could not have been employed by the applicant.
37.  On 5 December 2006 the Tallinn Court of Appeal refused to examine the appeal, as, according to the Code of Criminal Procedure, no appeal lay against the first-instance court’s decision in such a matter.
38.  In the meantime, on 1 December 2006 and then on 11 and 20 December the applicant was again interrogated. He admitted having committed the offence and gave additional statements. The interrogation reports of 1 and 11 December 2006 contain the applicant’s confirmation that he did not wish counsel to be present. On 20 December 2006 Mr Järve was present as counsel.
39.  In the meantime, on 18 December 2006 criminal proceedings were discontinued in respect of three other suspects, including A. and K., who had also been defended by Mr Järve.
40.  On 15 January 2007 the Lääne District Prosecutor’s Office sent an indictment concerning the applicant to the Pärnu County Court.
41.  In the court proceedings the applicant was assisted by Mr Järve as counsel.
42.  At the hearing, the applicant denied the charges and explained that the statements he had made during the pre-trial investigation had been prompted by his wish to be relieved from the pressure exerted by the police investigator. He had been threatened with being sent to another detention facility and being placed in a cell with violent detainees. According to the applicant’s statements in court, he had seen J. going to a forest together with an unknown youngster from a distance of about 100 metres. He had heard a strange sound as if a large animal had been making its way through the thicket and he had then entered the forest and found J. dead. He had been terrified and had been unable to control his actions. As a result, he had broken J.’s phone, which had started to ring; he had thrown the presumed murder weapon, which he had accidentally touched, into the bushes; and he had then fled from the murder scene. The applicant submitted that J.R., a police informant with whom he had shared a cell in the detention facility, had made him write the letter to his father. J.R. had subsequently handed that letter over to the authorities.
43.  During the trial, on 3 December 2007, the County Court ordered a psychiatric and psychological expert examination of the applicant. In addition to questions about the applicant’s condition during the commission of the crime, the court asked for an expert opinion on whether the applicant had been able to understand and control his behaviour and its consequences during the crime scene reconstruction on 7 August 2006 and during his interrogation on 10 August 2006. The court also asked for an expert opinion, based on the recordings of the above procedural measures, on whether the applicant’s statements during those procedural measures had been given voluntarily or under (prior) duress. On 26 February 2008 three experts expressed the opinion that the applicant was mentally healthy. During the examination the applicant had told the experts that he had not committed the murder. His statements to the contrary during the pre-trial investigation had been made under the pressure exerted by the police officers. He had told the truth in court. The experts concluded that at the time of the commission of the crime, the applicant had not been hindered from understanding that his actions were prohibited and controlling his behaviour in accordance with that understanding. Neither during the procedural measures in question nor at the time of his expert examination had the applicant displayed any mental disorders that prevented him from understanding and controlling his behaviour and its possible consequences. According to the experts, the assessment of the truthfulness and motives of a person’s statements on the basis of his external behaviour could not be scientifically justified.
44.  By a judgment of 17 June 2008 the County Court convicted the applicant of murder in a cruel and torturous manner, and of theft. The court was not convinced by the applicant’s statements and considered his version of the events implausible. The court relied, inter alia, on an inspection report of the crime scene, forensic expert opinions, and a record of mobile phone calls from a phone company, according to which the last incoming call to J. had been made by the applicant. The court also examined the report on the crime scene reconstruction which also contained the applicant’s on-site testimony. According to the judgment, the video recording of the reconstruction had been shown at the hearing. The video recording of the applicant’s questioning and confession on 10 August 2008 had also been shown. The court found that details concerning the way in which J. had been killed, which the applicant had given during the pre-trial investigation, coincided with the forensic expert’s opinion of how J. could have sustained the injuries. Moreover, some of J.’s personal belongings, such as a wallet and a key, had been found near the murder scene in places indicated by the applicant. The court further relied on the applicant’s letter to his father sent from the detention facility. It also referred to the statements of two of the applicant’s school mates, whom he had told before J.’s body had been found that J. had been killed and that his throat had been cut. The applicant’s brother had testified that on the evening of the murder the applicant had unexpectedly given him some cash. According to statements made by J.’s mother, J. had always had cash on him and the court concluded that the applicant had emptied J.’s wallet before throwing it away.
45.  The applicant was sentenced to ten years’ imprisonment.
46.  The applicant, still represented by Mr Järve, lodged an appeal with the Tallinn Court of Appeal. The appeal referred, inter alia, to the statements made by the applicant before the County Court that police officers had given him the text of the request to waive Mr Järve’s services. He had not wished to write such a letter but had complied with the order given to him. He repeated his allegations that the investigators had threatened to send him to another detention facility where he would be placed in a cell with violent detainees. Furthermore, he argued that a person placed in his cell had threatened him with a knife and demanded that he plead guilty.
47.  On 28 October 2008 the Court of Appeal partly overturned the first-instance court’s judgment: the applicant was acquitted of murder in a cruel manner and of theft, but his conviction of murder in a torturous manner was upheld, although the Court of Appeal modified the County Court’s reasoning in this respect.
48.  The Court of Appeal, referring to the Code of Criminal Procedure and to the Supreme Court’s case-law, noted that the defendant’s statements given at a court hearing were to be decisive. In the event that those statements contradicted those given during the pre-trial investigation and there was no explanation for the contradictions, a court could wholly disregard the defendant’s statements but could not choose to base its judgment on the statements given in the pre-trial investigation. The Court of Appeal found that in the present case, the County Court had extensively relied on reports and records drawn up in the preliminary investigation and noted that a video recording of one of the police interviews of the applicant had been shown at the County Court hearing. The Court of Appeal considered that that had breached the rules of procedure and, accordingly, all the statements made by the applicant during the pre-trial proceedings had to be disregarded. However, the Court of Appeal found that the applicant’s conviction was nevertheless safe. It stated:
“9.  In order to commence the assessment of [the applicant’s] immediate connection with the murder of [J.], one has to base oneself on the following situation, put briefly. The body of [J.] is found in a forest; it becomes evident that several of his belongings are missing. In the course of the proceedings it is established that [the applicant] was the last person to call [J.]. A car was also seen at the scene and its passengers are initially associated with the murder; as a result of a thorough investigation, first, the persons who were in the car are identified and then, it is established that those persons had no connection whatsoever with the murder. At the same time [and] in parallel, proceedings were carried out in respect of [the applicant] who, at a certain point in time, confessed to having committed the murder, but during the trial in court he abandoned that [position]. Although the Court of Appeal has ruled that the statements made in the pre-trial proceedings had to be excluded from the body of evidence, there is nothing to prevent the use of such general knowledge; the confession of murder was to a large extent the reason why [the applicant] was committed to trial charged with murder, and the investigations were carried out on the basis of that knowledge. Even the defendant himself did not deny at the Court of Appeal hearing that he had earlier confessed to committing the murder; it is the question of further proceedings and the assessment of the evidence as a whole, whether or not [the applicant’s] statements given in court and his version of the events were to be considered truthful and what evidence directly refers to [the applicant] as the author of the offence, regardless of the setting aside of the statements made during the pre-trial proceedings.”
49.  The Court of Appeal proceeded to demonstrate through detailed analysis that the applicant’s statements given at the court hearing were incoherent and contradicted other admissible evidence (the factual circumstances, expert opinions, crime scene inspection reports, witness statements and so on). The Court of Appeal also relied on the letter that the applicant wrote to his father from the detention facility. It thoroughly analysed the letter and found it implausible that it had been written under duress or that it had been intended that it be seized by the authorities. The Court of Appeal noted that the defence had not requested that J.R., the applicant’s cellmate who had allegedly pressurised him, be summoned to the court.
50.  The Court of Appeal partly agreed with the applicant’s complaint of an infringement of his defence rights during the pre-trial proceedings. It noted that under the Code of Criminal Procedure, defence counsel’s participation in the whole proceedings was absolutely mandatory if the offence was committed by a minor, as in the instant case. However, in the present case the applicant had been questioned twice during the pre-trial proceedings without his counsel being present. Nevertheless, the Court of Appeal found that, as the statements made in the pre-trial proceedings were wholly out of the scope of material that could be considered by the trial court, any negative consequences of a possible violation of the applicant’s defence rights could not have materialised in the present case.
51.  On 5 January 2009 the Supreme Court declined to hear an appeal lodged by the applicant.